Briefing Notes w/e 23 November 2018

by John Wood | November 23rd, 2018

Exclusions from definition of disability

Under the Equality Act 2010 there are a number of conditions that are exempt from protection, predominantly on public policy grounds, which might otherwise meet the definition of disability.  In the case of Wood v Durham County Council the EAT considered whether an employee who had been dismissed after shoplifting fell within one those exemptions. 

Mr Wood had post-traumatic stress disorder and dissociative amnesia, which manifested in a number of different ways including memory loss and forgetfulness.  After considering written evidence and submissions at a preliminary hearing, the Tribunal determined that the result of the condition was a tendency to steal.  That meant the condition fell within the exclusion under the Regulations and, in the circumstances, did not amount to an impairment for the purposes of the Equality Act 2010.  As the excluded condition was the reason for the alleged discriminatory treatment, the Tribunal dismissed his complaint of disability discrimination. 

On appeal, the EAT agreed with the approach the Tribunal had taken.  They were satisfied that Mr Wood’s conduct demonstrated a tendency to steal and it had highlighted a number of instances where it considered he had been dishonest before reaching that conclusion. Further, whilst Mr Wood had not necessarily accepted he had stolen, he had pleaded his case throughout that he had a “tendency” to do whatever had happened.  On that basis, the Tribunal had not erred in its approach and had reached a justifiable conclusion.     

Foster Carers not workers

In what has been a longstanding area of concern for many local authorities, the ECJ has held that foster parents are not workers for the purpose of the Working Time Directive.  Foster parents usually enter into a contract with a local authority whereby they agree to make themselves available in order that children can be placed with them, usually receiving a payment for doing so. The purpose of the role is to provide care to the child and to be responsible for their upbringing, wellbeing and education. 

There have been a number of challenges by foster parents over the years who have sought to argue that they were workers and therefore entitled to certain rights.  However the ECJ has decided that giving foster parents the right to weekly or rest periods or annual leave would undermine the purpose of the foster parent role – namely the integration of those children into their home and family.  Clearly there is significant public policy reasons behind this decision, but it will no doubt be a welcome relief for the public sector. 

Drugs test & dismissal

Was it unfair to dismiss a bus driver who had failed a drugs test?  Based on the particular facts in the case of Ball v First Essex Buses Limited, a Tribunal have held that it was. 

Mr Ball had worked for First Essex Buses (“FEB”) for 21 years with an unblemished record.  He also suffered from diabetes and high blood pressure which meant he had to check his sugar levels every two hours.  FEB’s Drugs and Alcohol Policy allowed them to carry out random drugs testing, which in Mr Ball’s case came back positive for cocaine.  Mr Ball denied he had used any such drugs and suggested a number of alternative possibilities, including that the sample must have been contaminated.  He even provided FEB with his own drugs test, which did not detect any cocaine.  At the disciplinary hearing, FEB rejected that evidence on the grounds that the test hadn’t been carried out by their approved tester, and he was therefore dismissed for gross misconduct.  Prior to the appeal, FEB did seek further advice in relation to the hair follicle test, which it was suggested may not show up a sample of cocaine depending on the time it had been obtained, however they decided to again ignore the hair follicle test and did not give Mr Ball the opportunity to comment on their further investigations.

The Tribunal found his dismissal to be unfair.  Not only had FEB failed to draw to Mr Ball’s attention a number of relevant parts of the Alcohol and Drugs Policy, but the Tribunal found it had taken a blinkered approach during the disciplinary and appeal hearings. The Tribunal considered that as reasonable concerns had been raised in relation to the positive result, a reasonable employer would have undertaken further investigation or, at the very least, retested the employee.  That was particularly so given that he was a longstanding employee with a clean disciplinary record.  

This is a useful reminder to employers of the different factors the tribunal will consider in conduct dismissals, but also the need for a greater depth of investigation where there is the potential for gross misconduct.  The employer must be able to show that it held a reasonable belief that the employee had acted in the manner alleged, that it undertook a reasonable investigation in considering the allegations and that dismissal is a decision that a reasonable employer could have reached.